Case: 13-15073   Date Filed: 06/05/2015    Page: 1 of 4


                                                            [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-15073
                             Non-Argument Calendar
                           ________________________

                        D.C. Docket No. 1:11-cv-01276-TCB

FRANK JOSEPH SCHWINDLER,

                                                    Plaintiff - Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

                                                    Defendant - Appellee.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                   (June 5, 2015)

Before HULL, ROSENBAUM, and COX, Circuit Judges.

PER CURIAM:

         Plaintiff Frank Joseph Schwindler is an inmate in the Georgia state-run

prison system. He seeks prospective injunctive relief against the Commissioner of

the Georgia Department of Corrections in his official capacity based on the Ex
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parte Young doctrine. See Ex parte Young, 

, 

(1908).

The district court granted summary judgment for the Commissioner on all claims.

Schwindler appeals only the district court’s grant of summary judgment on his

access-to-the-courts claim. See Bounds v. Smith, 

, 828, 

,

1498 (1977). We reverse.

      Schwindler’s access-to-the-courts claim is based on his allegation that the

various prisons in which he has been incarcerated have continuously denied him

access to his legal files, thereby frustrating his ability to seek post-conviction

relief. He also alleges that the Georgia Department of Corrections “tortiously

deprived plaintiff of between 40 and 60 percent of plaintiff’s legal files and

materials without due process.” (Complaint, D.E. 1 at 5). In other words, a number

of his legal files have gone missing.

      The district court granted summary judgment on this claim based on its

determination that Schwindler had not created a genuine issue of material fact as to

whether the constitutional violation was ongoing. See Summit Med. Assocs. v.

Pryor, 

, 1337 (11th Cir. 1999) (“[T]he Ex parte Young doctrine

applies only to ongoing and continuous violations of federal law.”) (citation

omitted). The district court based its holding on two separate bases. First, the

district court concluded that the loss or destruction of Schwindler’s legal files

happened at a discrete moment in the past, and is, therefore, not an ongoing


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violation. Since the files no longer exist, the district court reasoned, there is

nothing for the district court to do about it. Second, the district court concluded

that Schwindler had presented no evidence of ongoing denials of access to his files.

      We review de novo a district court’s grant of summary judgment, using the

same standards as the district court. McCormick v. City of Fort Lauderdale, 

, 1242–43 (11th Cir. 2003). Summary judgment is appropriate where

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(a).

      We hold that there is a genuine issue of material fact as to whether there is

an ongoing violation of Schwindler’s right to access the courts for two reasons.

First, Schwindler was asked in his deposition if there were “instances where [he

was] not allowed access to [his] files.” (Dep. of Frank Schwindler, D.E. 101-7 at

28). His response was “[t]hat’s correct.” (Id.). The Commissioner refers to this

testimony as “vague, unsupported, and conclusory.” (Br. for Appellee at 12).

However, this is not a pleading, it is testimony. Schwindler was under oath, and

need not testify with the same level of specificity as in a complaint in order for it to

qualify as evidence.

      Second, and most importantly, Schwindler seeks the replacement of his lost

or destroyed files, to the extent possible. The district court ignored the possibility

that the Commissioner’s continued refusal to attempt to replace the files that were


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lost while in the Georgia Department of Corrections’s custody is itself an ongoing

violation of Schwindler’s right to access the courts. 1

       For the foregoing reasons, we find that Schwindler has created a material

issue of fact as to whether there is an ongoing violation of his right to access the

courts. We reverse the judgment of the district court and remand for further

proceedings.

       REVERSED AND REMANDED.




       1
          The Commissioner also seeks to defend the judgment of the district court based on
Schwindler’s failure to prove actual injury. The Commissioner did not raise this issue below
and, for this reason, the record has not been sufficiently developed for us to consider it.
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